Ads are coming to Instagram, starring you – even if you don’t use it [Updated]

Instagram, the wildly popular photo-sharing service recently purchased by Facebook, revealed a newTerms of Service on Monday. One of the reasons for doing so is to prepare the way for ads that will be used to pay its bills, though this blog post announcing the change doesn’t mention that. The post describes the changes as helping “Instagram function more easily as part of Facebook by being able to share info between the two groups.”

A section of the new terms of service, titled “Rights,” notes that Instagram will also be able to use your photographs and identity in advertisements. “You agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you,” the new terms say. This means that photographs uploaded to Instagram could end up in an advertisement on the service or on Facebook. In addition, someone who doesn’t use Instagram could end up in an advertisement if they have their photograph snapped and shared on the service by a friend. Facebook already runs ads that make use of people’s activity on its site.

What this means is that any photo you upload to Instagram could be used in an ad for a product or service on the site. And if you take a photo of someone who isn’t on Instagram, their image could show up in an ad.

NYT reporters Jenna Wortham and Nick Bilton quote Marc Rotenberg, executive director of the Electronic Privacy Information Center, as saying this could run afoul of privacy laws in some states that forbid the use of someone’s name or likeness without their consent. While Instagram would argue that its users are giving consent by accessing the service, that’s not true of people who don’t use Instagram who end up in photos used in ads.

In other words, even if you don’t use Instagram, you’re not safe from its potentially abusing your name and likeness.

The new Terms of Service also make it clear that being under age won’t exempt users. As is he case with most sites the accept user content, you’re not supposed to access Instagram if you’re under 13. But those teens who are on the site are presumed to be there with their parents’ knowledge, according to Instagram’s new ToS, so it’s OK for their content to be used, too.

Here’s the language that allows that:

. . . If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.

If you’re a parent of a teen with a smartphone, tablet or device like an iPod Touch, do you know if your child uses Instagram? If they do, are you OK with the service using your child’s photos – which may include pictures of their friends – for advertising purposes?

Finally, the terms of service don’t allow for users to opt out. There’s no checkbox that says, “Don’t use my images in ads”. Your only recourse is to not use the service and shut down your account if you already have one. And simply by signing into the service via its apps or website, you’re giving consent to the use of your content.

If you’re on Instagram and aren’t comfortable with the changes – which take effect Jan. 16 – you can delete your account. But you’ll probably want to steer clear of your friends who do use Instagram when they whip out their tablet or smartphone for some fun party pictures. Whether you like it or not, you could end up appearing in an ad on the service.

Update: As you’d expect, Instagram’s new Terms of Service is upsetting many of its users. The company has acknowledged this in a tweet:

We’ve heard you that the updates to our Privacy Policy & Terms of Service are raising a lot of questions. We’ll have more to share very soon

Advertising on Instagram From the start, Instagram was created to become a business. Advertising is one of many ways that Instagram can become a self-sustaining business, but not the only one. Our intention in updating the terms was to communicate that we’d like to experiment with innovative advertising that feels appropriate on Instagram. Instead it was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.

To provide context, we envision a future where both users and brands alike may promote their photos & accounts to increase engagement and to build a more meaningful following. Let’s say a business wanted to promote their account to gain more followers and Instagram was able to feature them in some way. In order to help make a more relevant and useful promotion, it would be helpful to see which of the people you follow also follow this business. In this way, some of the data you produce — like the actions you take (eg, following the account) and your profile photo — might show up if you are following this business.

The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question. Our main goal is to avoid things likes advertising banners you see in other apps that would hurt the Instagram user experience. Instead, we want to create meaningful ways to help you discover new and interesting accounts and content while building a self-sustaining business at the same time.

We’ll have to see just what the new language says, but it’s nice to see Instagram responding quickly to this criticism.

Dwight Silverman | Techblogger, social media manager

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